The Calvert Cliffs Decision – What’s Next?

A panel of judges on the NRC’s Atomic Safety and Licensing Board has completed its hearing on challenges to an application to build a new nuclear power plant at Calvert Cliffs in Maryland. Board hearings are one part of the NRC’s process for determining whether a new reactor can be approved.

The judges’ rulings have enough moving parts that we’re taking the unusual step of providing this brief summary to make sure everything’s clearly understood.

Most importantly, the judges ruled that the applicant, UniStar, is completely foreign-owned and therefore the NRC cannot give UniStar a license until they’ve resolved this issue. When the company submitted its application in 2007, UniStar was a joint venture between Maryland-based Constellation and the French company EDF. That arrangement was challenged by several environmental groups, but in late 2010 EDF bought Constellation’s portion and made UniStar foreign-owned.

The judges ruled that UniStar has 60 days from today to provide proof of progress towards a partnership with a U.S. company that meets the NRC’s requirements. Without that proof, the judges will end the hearing. After 60 days, UniStar would have to fulfill additional requirements to re-start the hearing if they found a U.S. partner.

Another panel of judges is considering a new reactor application for a site in Texas that also examines foreign ownership issues, but under different circumstances.

The Calvert Cliffs judges had other issues to consider, and they ruled on those too so that if UniStar finds a suitable U.S. partner in the future, the NRC could continue its overall review of the application.

The judges examined a challenge to the NRC’s environmental review. The groups opposed to the application argued the agency’s review failed to properly account for possible increases in solar and wind power as an alternative to a new reactor. The judges said that argument was correct when the hearing started, but all the information considered during the hearing corrected the agency’s error. The judges ruled the environmental review as it exists today is acceptable.

The judges also ruled on the groups’ attempt to offer a new argument based on the lessons learned from last year’s Fukushima Dai-ichi nuclear accident in Japan. The groups claimed the Calvert Cliffs environmental review would be incomplete until the NRC considered information from the agency’s Fukushima task force report, including possible improvements for dealing with reactor accidents.

The judges ruled that, while the groups filed their argument within the time allowed by the NRC’s rules, the judges must abide by a March 16, 2012, decision from the agency’s five Commissioners. That decision rejected a similar argument in other hearings, concluding the argument failed to point out how Fukushima’s events directly related to the applications under review. The Calvert Cliffs judges ruled the same situation applies here, and therefore the groups’ argument must be rejected.

One judge provided a separate opinion that, even if the earlier Commission decision didn’t apply, the groups failed to show how their argument could alter the environmental impacts enough to require additional agency review. Another judge provided a separate opinion that a portion of the groups’ argument could be acceptable if the earlier Commission decision didn’t apply.

As is the case with all Atomic Safety and Licensing Board decisions, the ruling can be appealed to the NRC’s five Commissioners.

Scott Burnell
Public Affairs Officer